GHULAM OASIM vs GHULAM HUSSAIN

1. MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the refusal by the High Court to restore the appellant's Civil Revision which had earlier been dismissed for non-prosecution. . The relevant facts, briefly stated, are that the. Appellant who was defendant in a suit for possession had tiled a civil revision in the High Court against the appellate judgment confirming a decree passed in favour of respondent/plaintiff. This revision was fixed for hearing on 11.-4-1990 but it could not be disposed of on that day and the case was adjourned to 14-4-1990. The appellant's counsel had by an earlier application of 9-4-1990 sought and obtained general adjournment from 14-4-1990 to 25-4-1990: This application had in fact been allowed but as stated in the petition for leave to appeal filed in this Court the counsel was not aware that it had been allowed. He accordingly, did appear on 11-4-1990 under the impression that his application might not have been decided.

2. When the case was taken up on 14-4-1990, the office had to put up the order in the meanwhile, passed on the application for adjournment. The Court did take note of the general adjournment.

3. Nevertheless it dismissed the civil revision for non-prosecution.

4. The two points which prevailed with the High Court were: One, that the counsel was present when the case was adjourned from 11-4-1990 to 14-4-1990; and two; that by the conduct of the counsel in not informing the Court on 11-4-1990 that he had already submitted application for general adjournment "it was clear that the learned counsel shall appear on the adjourned date to argue the case. Had he informed the Court, either the case would have been adjourned to a date after 25th or the learned counsel in view of the nature of the case, could have arranged to make alternate arrangement so that the decision of the civil revision did not suffer further delay." From this the learned Judge, as he put it, gained the "only possible impression that the learned counsel wanted to avoid appearance in the Court till a date when the learned Judge would be returned from the Circuit at Multan Bench which by then would have ended". This the learnedJudge, further, opined was, "extremely regrettable" and further that such were causes of "proverbial delays in Court".

5. The learned Judge, it seems, proceeded on an assumption which is well-known to the legal circles.

6. That some unscrupulous litigants aided or unaided by their agents do avoid hearing before one Bench and prefer another Bench of the same Court. This phenomenon has been adversely commented upon earlier also is some cases. It is very unfortunate and effort should be made particularly by the responsible lawyers to discourage it.

7. In this case, no doubt the circumstances narrated by the learned counsel could raise a suspicion against the appellant and may be against his counsel also who appeared on 11-4-1990 and failed to inform the Court that he had earlier made an application for general adjournment. This application for general adjournment was dated 9-4-1990 and the reason therein was that the learned counsel was to proceed out of station and will be "in Eitikaf'. The learned counsel having made the application on 9-4-1990 when he appeared on 11-4-1990, as stated by him, was not aware that the application had already been allowed. This statement of the learned counsel has not been disbelieved by the learned Judge. That being so, there could be two equally reasonable possibilities regarding what happened on 11-4-1990 in so far as the mental attitude of the learned counsel is concerned. One, that if - he informs the learned Judge about his application and if it is not allowed (order was to be passed by another Honourable Judge) the learned Judge dealing with the case might feel that a wrong statement had been made by the learned counsel. The second equally strong possibility would be that the learned Judge was expecting as it subsequently happened, that in case the counsel's application is allowed, the order allowing the application would be put up; as it would be available to the fixture branch of the Court, and the case may not be fixed, on account of the adjournment order. Or, at the most even if the fixture branch omitted to note the adjournment order the learned Judge dealing with the case on the adjourned date, would not take up the case .A third possibility also though slightly remote can be visualised; namely, that the learned counsel might have genuinely forgotten to inform the learned Judge on 11-4-1990 about the general adjournment application.

8. In presence of all these possibilities, the learned Judge when assuming another possibility about the ulterior motives of the learned counsel, wit] respect, perhaps ignored the aforenoted possibilities. This Court in an identical situation confronted by A lawyer in making honest assessm ent about the timings regarding hearing of cases had allowed the benefit of hones miscalculation, misunderstanding, mistiming or even misinformation. These, human innocent failings if are permitted to he relied upon at explanations b ordinary individuals and litigants, the lawyers are also entitled to du consideration in this behalf. See Jan Muhammad v. Muhammad Asghar (PLI 1981 SC 513); Jamal Din v. Ramzan 1982 SCM R 471 and Mst. Baigan v. Abdu Hakeem 1982 SCM R 673.

9. At this stage it needs to be clarified that it is by no means intended that if a lawyer is found amiss as visualised by the learned Judge in this case and the misconduct is beyond any reasonable doubt there is nothing which would prevent the Court to pass any order which is deemed fit and in that eventuality as it happened in this case even the dismissal of the cause, would be justified. .

10. In the light of the foregoing discussion and the reasonable possibilities visualised, this appeal is allowed. The impugned orders are set aside and the case is remanded to the High Court for disposal of the civil revision which shall be deemed to be pending and shall be disposed of on merits after hearing the parties.